John Hilton III has written an article for for First Monday with the deceptive title “From PDF to MP3.” It has nothing to do with PDFs or MP3s. The article attempts to demonstrate the usefulness of Creative Commons licensing in the creation of alternate formats – and fails.

Hilton studied eight printed books by five Internet academics and copyright reformers (which alters the experiment right there) – Benkler, Boyle, Doctorow and Lessig (inevitably), and Zittrain. Hilton tracked down some creators of derivative works made from these books.

“The most common reason for derivatives was to increase the ability for others to access a given work,” he writes. Yet Creative Commons licensing had no bearing on the creation of any of the derivative works. Nothing was specially enabled by Creative Commons. While there were no barriers or illegalities resolved by Creative Commons, such licensing may have put authors in breach of contract.

Hilton mentions how a contributor “converted Boyle’s The Public Domain into a DAISY digital talking book for the blind,” and later mentions a separate Braille conversion. In the U.S. and many other places, alternate formats for print-disabled readers can be converted as of right without asking permission, assuming the copyright holder hasn’t beaten you to it. Alternate formats rely on a specific exemption built into copyright law and are not something special you need a licence for. Alternate formats are already permitted up front.

Hilton discusses foreign-language translations. You always need advance authorization for those (save for sign-language translations as an alternate format in Canada, but this is U.S. law Hilton is addressing). The problem is most authors assign the right to authorize translations to their publishers. There are good reasons for that: Publishers have all the contacts and all the files necessary. (Generally, one publisher license a foreign-language version to another publisher, who hires a translator.) Not atypically, publisher and author split the proceeds, which may not be a lot of money.

Nonetheless, the authors involved may not have had the right to assign translations. That means they could be in breach of contract. Creative Commons licensing does not override the terms of an author’s contract with a publisher. When I twice asked him about this, Hilton refused to even confirm he verified that authors had the rights they assigned. (So much for First Monday’s peer review, one might say.)

Audiobook versions are mentioned, but rights to those may also be assigned to publishers by contract. (That is almost always the case because a different set of rights – confusingly named publishing rights, denoted by ℗ – come into existence with a recording. Plus they are a lot of work to create. It’s a hassle that publishers are better equipped to handle.)

Hilton writes: “A[nother] theme emphasized was the importance of authors giving credit to the individuals creating derivative [works].” No clause in copyright law requires any such acknowledgement, and neither does Creative Commons licensing. It’s extraneous at best and shows how Creative Commons proponents have a hard time staying on topic.

Also extraneous is a discussion of the importance of publishing digital versions rather than paper books only. Copyright law doesn’t force or prevent any such action and neither does Creative Commons licensing.

The real problem with Hilton’s thesis

Hilton misstates copyright “regulations” when he claims they “often prevent derivatives from being created.” Copyright law prevents unauthorized derivatives from being created, and allows certain others as of right. Copyright law does nothing to impede authors from authorizing derivative works. The only thing impeded is illegal creation of derivative works. Copyright law, like surprisingly many laws, makes some things illegal, but there’s an easy escape clause here.

At root, Hilton argues that ante-facto Creative Commons licensing makes more works possible. But authors didn’t even necessarily have the legal right to authorize many of these works under any guise. Others could be made right away. For still others, authors could be easily contacted and asked for permission directly. Had that happened, authors could have checked their contracts and refrained from granting subrights they didn’t have in the first place.

Hilton consistently implies that Creative Commons is the only practicable way for authors to let others create derivative works (“As more authors license their works in such a way as to permit derivatives, and as more individuals learn that they are legally permitted to create derivatives”). If you want to create a derivative work, you can just ask the author for permission. Other times you can forge right ahead.

Hilton discusses the importance of crediting creators of derivative works, but, when I asked, dismissed the practicality of having those creators contact the original authors. This is ridiculous, since all parties are online and that isn’t going to change until they drop dead. Hilton says authors should go out of their way to thank creators of derivative works, but suggests it’s too much trouble for such would-be creators to actually contact the authors.

Hilton contacted 28 creators of derivative works, but didn’t bother telling us how many actual works were created. Even so, five authors could handle 28 requests among them pretty handily. This is not a lot of E-mail to sort through.

The advantage of appealing directly to authors is, first of all, they can actually say yes or no (Creative Commons creates a permanent yes) and they at least know who they’re working with. Knowing exactly what somebody plans to do in advance is perfectly reasonable and causes no harm to anything, let alone the commonweal.

As another Internet academic, Douglas Rushkoff, put it, “Where’s the Creative Commons licence that I could say ‘OK, you can have it for free, but at least you have to ask me for it’? ‘Free if you send me an E-mail’? I just want to give it to you rather than to it.”

The worst copyright paper of the year?

Well, the year is still young, but for now, yes. John Hilton III didn’t prove Creative Commons solves any problem he raised. Everything creators of derivative versions did they could have done without Creative Commons licensing just by asking for permission.

You can’t really be serious if you think asking for permission would have been a barrier in any of the cases Hilton describes.

Additional annoyance

As with apparently all First Monday articles, some twit has gone out of his way to convert every hyphen to an en dash. They’ve known this is a mistake for ten years, because that’s when I first reported it to them.

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The foregoing posting appeared on Joe Clark’s personal Weblog on 2010.03.11 14:45. This presentation was designed for printing and omits components that make sense only onscreen. (If you are seeing this on a screen, then the page stylesheet was not loaded or not loaded properly.) The permanent link is: https://blog.fawny.org/2010/03/11/hiltoniii/

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